Kavanaugh hearings continue with open questions, missteps, but an unchanged whip count

Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on Thursday, the second day of his Supreme Court confirmation hearings, on Capitol Hill in Washington, D.C. (Photo: Chip Somodevilla/Getty Images)

WASHINGTON — As questioning of Supreme Court nominee Brett Kavanaugh resumes for a second day, Democratic senators are likely to press him on a plethora of open questions left hanging from yesterday’s approximately 13-hour hearing, but privately there are still few doubts Kavanaugh is on track to be confirmed.

From the beginning to the end of the questioning yesterday, Democratic senators were able to raise unpopular strains in the nominee’s legal thinking and questions about his personal history that appeared to deeply unsettle the nominee. However, in at least two sets of inquiries yesterday, the Democrats left these lines of inquiry substantially unresolved.

Sen. Kamala Harris, D-Calif., set the hearing room abuzz last night with a line of intense questioning about whether Kavanaugh had discussed special counsel Robert Mueller or his investigation with anyone at the firm of Kasowitz Benson Torres, which was founded by President Trump’s long-time lawyer Marc Kasowitz. The line of questioning appeared to take Kavanaugh aback. He admitted that he had discussed the special counsel’s investigation with fellow judges and others, and suggested he’d need a list of everyone who worked at the Kasowitz firm to rule out the possibility he’d spoken with one of them about it.

Kavanaugh repeatedly probed Harris for specifics on who she was asking about, but she refused to provide further information and eventually moved on. While Harris’s questioning and Kavanaugh’s stunned reaction provided drama at the end of the day’s proceedings, observers were left without clear answers about what had prompted it.

A Democratic aide who requested anonymity to share further details said, “We have reason to believe that a conversation happened, and are continuing to pursue it.”

Earlier in the day, Sen. Patrick Leahy, D- Vt., had raised questions about Kavanaugh’s involvement in the Senate email hacking scandal in the early years of George W. Bush’s presidency. That scandal involved Republican staffers on the Senate Judiciary Committee breaking into the private files of Democrats on the committee and passing information to the Bush White House to help confirm its nominees.

Kavanaugh has testified that, to his knowledge, he never received or benefited from the stolen documents. Leahy showed some emails that suggested Kavanaugh had, in fact, received some of this material, including one referring to “intel” about what Leahy would ask about one of Bush’s nominees.

However, none of the emails made public demonstrated that Kavanaugh knew the provenance of the information. On Wednesday, that line of questioning ended when Leahy said more documents are being withheld from the public as “committee confidential” that show Kavanaugh’s knowing involvement, and Leahy expects Chairman Chuck Grassley to make those documents public today.

Kavanaugh showed throughout the day that he is well practiced at turning away aggressive questioning, and those skills never betrayed him. His demeanor may have made him seem at times like a man with something to hide, but it’s unclear if Democratic senators have the goods on what, if anything, that could be.

Another open question came from retiring Republican Sen. Jeff Flake, who raised President Trump’s assault on the independence of the Justice Department with Kavanaugh. First, Flake read a tweet Trump posted earlier this week attacking Attorney General Jeff Sessions and the Justice Department for prosecuting two Republican congressmen and jeopardizing their chances of reelection.

Flake asked Kavanaugh: Should the president be able to influence independent agencies or departments for purely political reasons? Kavanaugh demurred, citing a reluctance to comment on “current events.”

Flake pursed the question twice more, asking Kavanaugh to answer as a matter of principle, and to explain how the regulations allowing for the appointment of a special counsel like Mueller are any check on the president if the president can fire the special counsel. This last question prompted Kavanaugh to point to Nixon’s firing of special counsel Archibald Cox, a dramatic crisis known as the “Saturday Night Massacre” that led to the resignation of the attorney general and deputy attorney general before Solicitor General Robert Bork agreed to carry out President Nixon’s orders; Kavanaugh noted that the “system held,” even at that extremity.

Kyle suggested he may resume questioning on this issue today.

Democrats also opened up substantial lines of questioning on Kavanaugh’s positions on race, guns and abortion.

Sen. Mazie Hirono brought up Kavanaugh’s involvement in a case in which he argued that native Hawaiians are not an indigenous people. Kavanaugh worked with erstwhile nominee Robert Bork on the case in 1999, and their involvement led to the filing of an amicus brief and an op-ed in the Wall Street Journal in which Kavanaugh incorrectly located the Hawaiian islands outside of Polynesia.

In the op-ed, Kavanaugh repeatedly uses the term “racial spoils system,” but he refused to explain to Harris what he meant by it. Kavanaugh answered “no” when Harris asked if he was aware that the term is “commonly used by white supremacists.”

Regarding guns, under questioning by Sen. Dianne Feinstein, D-Calif., Kavanaugh appeared to misstate an aspect of Justice Antonin Scalia’s D.C. v. Heller decision. Feinstein asked how he justified his view that assault weapons — such as the AR-15 — are constitutionally protected, and Kavanaugh responded that semi-automatic rifles are some of the most popular guns in the nation and therefore fall under the “common use” test in Scalia’s Heller decision.

However, the “common use” test in the Heller decision refers to weapons that were “in common use at the time” of the Second Amendment’s ratification in 1789, not commonly owned modern weapons. In fact, Scalia’s opinion goes on to explain why modern weapons such as “M-16 rifles and the like” may be banned under his reading of the Second Amendment despite their utility in modern military service. Feinstein’s office confirmed that they believe he misstated the law, but would not comment on whether she will resume questioning on this subject.

A poster depicting a 2017 quote on the Second Amendment by President Trump’s Supreme Court nominee, Brett Kavanaugh, is held up behind Sen. Dianne Feinstein, D-Calif., as she questions Kavanaugh on Capitol Hill in Washington on Thursday, the second day of his confirmation hearings. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, looks on. (Photo: Andrew Harnik/AP)

On abortion, Kavanaugh said Wednesday that while the Supreme Court’s decision in Planned Parenthood v. Casey had reaffirmed its landmark decision in Roe v. Wade decriminalizing abortion, the Court had “reached a position that allowed some reasonable regulations.” While Roe is settled precedent, he said, Casey is “precedent on precedent.” These comments imply Kavanaugh, while he demurs before the hearing from discussing directly overturning Roe, would be receptive to the efforts of some state legislatures to restrict access to abortion through onerous regulation.

In June 2016, with Scalia’s seat held vacant as the Senate refused to take up Merrick Garland’s nomination, the Court struck down by a vote of 5-3 onerous regulations imposed on abortion clinics by Texas. Since that time, Scalia’s seat has been filled by Justice Neil Gorsuch, presumably providing a fourth vote that would have upheld the regulations, along with the votes of Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas. Justice Anthony Kennedy has retired.

Kavanaugh appears to be signaling that if confirmed to fill Justice Kennedy’s seat, he may provide a fifth vote to uphold those regulations as well. Kavanaugh has not referred to the 2016 decision, Whole Woman’s Health v. Hellerstedt, in the hearings thus far or said whether he considers it settled precedent.

For all the open questions, there are still few doubts that Kavanaugh is on track to be confirmed.

Speaking informally after the hearing, a Republican aide said it was a fair question whether Sen. Flake’s vote for Kavanaugh was a bit shaky given his questioning on executive power, but said he couldn’t imagine Flake opposing Kavanaugh on the Senate floor.

Tim Miller, a former aide to Jeb Bush, said he didn’t see any signs that Kavanaugh’s hearings performance was weakening his chances, and noting the past example of Harriet Miers, a nominee to the Supreme Court whose name had to be withdrawn during George W. Bush’s administration.

“With Miers, it was the talk radio chatter that was the sign,” he said. With Kavanaugh, we’re “not seeing anything like that.”